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An employer has lost a wrongful dismissal case after a court found that its safety rules, which it alleged the employee violated, were unclear and not clearly-communicated.

The employee worked at a solid waste facility in the Yukon. The employer fired the employee and attempted to prove “just cause” on the basis of absenteeism, poor working relationships, use of company cell phone for personal calls, and safety violations.

With respect to safety, the employer claimed that the employee did not like to wear her safety vest and steel-toed boots, despite it being a job requirement, and that the employee was constantly reminded to wear her hard hat. The employee acknowledged that she knew that if she did not comply with the safety rules, she would be fired; however, she said that the rules were unclear and she had asked that they be written down.

The court decided that the hard hat requirement was not clearly set out by the employer, and was not included in the employer’s

Recent Columns by Adrian Miedema

“I find that the society did not take the necessary steps to ensure that there was a clear and unequivocal set of rules, guidelines and/or policies that made it clear what equipment was to be worn at what locations and at what times. I find that, to the extent that there was some verbal direction provided, this direction was not entirely clear and cannot be relied upon as establishing a standard that Ms. Goncharova can then be viewed as having breached. The power to establish clear and unequivocal standards and requirements lay with the Society. It simply was not done.”

The employer also failed to prove that the absenteeism, relationship issues and cell phone use justified the dismissal.

This case illustrates the importance of clear communication of safety rules where the employer wishes to discipline or dismiss the employee for a violation of those rules.

Adrian Miedema is a partner in the Toronto Employment Group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts. For more information, visit www.dentons.com or www.occupationalhealthandsafetylaw.com.

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2 Comments

Hog Wash

Saturday, April 29, 2017 12:55:00 PM by Ron Allen

Here is a statement from AOHS Legislation. (2) Every worker shall, while engaged in an occupation, (a) take reasonable care to protect the health and safety of the worker and of other workers present while the worker is working, and There are a number of Supreme Court decisions that support this concept. i.e Paciocco’s decision in Thomas G. Fuller is a refreshing review of the classic second branch of the due diligence defence. It also brings us back to the reality of what the purpose and intent of the Supreme Court’s seminal decision in R.v. City of Sault Ste. Marie that set down the two branches of the defence of due diligence. However, the trial judge said, “...due diligence is a negligence-based standard. The pertinent question is whether the accused took all of the care that a [reasonable person] might have been expected to take in the circumstances.” The court went on to hold that due diligence did not require the steps cited by the prosecution as the steps that could have been taken by the defendant but were not taken. In other words, the second branch of the due diligence defence cannot be understood to require the accused to take each and every precaution that would be reasonable to take in the circumstances. The decision would also now preclude Ministry of Labour prosecutors from offering up alternative steps that ought to have been taken, as a means of undermining or putting into question the availability of the due diligence defence. There is only one rational decision why the court ruled against the employer and that is for dollars. This decision is like telling your child to pick up their socks and put them in the clothes hammer. When you notice it has not been done you say ther can be no consequences because I did not explain the necessary steps to ensure that there was a clear and unequivocal set of rules, guidelines and/or policies that made it clear what socks were to be picked up and the location of the hamper s and at what times they should be picked up. Where is the reasonable care of the worker come into this picture.

It all sounds good that she won her wrongful dismissal case but at the end of the day she is still out of a job and any severance will likely be a pittance. Prospective employers will likely be hesitant to hire someone with a record of this sort.